Delhi District Court
State vs . Prem Thapa Etc. on 5 May, 2014
1 IN THE COURT OF SH. NEERAJ GAUR/ACMM/NW/ROHINI COURTS/DELHI State Vs. Prem Thapa etc. FIR No. 258/12 PS: Keshav Puram U/s 392/394/411/34 IPC ID No. 02404R0316582012 JUDGEMENT
A) Sl. No. of the case : 326/2
B) The date of commission : 06.09.2012
of offence
C) The name of the complainant : Sh. Sunder Kumar Rai
S/o Sh. Dev Narayan Rai
R/o F327, JJ Colony, Shakurpur,
Delhi
D) The name & address of accused : 1. Prem Thapa
S/o Rawat Thapa
R/o Vagabond, Keshav Puram, Delhi
2. Arun
S/o Sh. Lalji Tiwari
R/o Shop No. 4, B Block, Indl. Area,
Keshav Puram, Delhi
E) Offences complained of : U/s 392/394/411/34 IPC
F) The plea of accused : Pleaded not guilty
G) Final order : Accused Prem Thapa & Arun
convicted U/s 392/34 IPC and Arun
also convicted U/s 411 IPC.
H) The date of such order : 05.05.2014
FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 1/12
2
Date of Institution: 08.11.2012
Judgment reserved on: 05.05.2014
Judgment announced on: 05.05.2014
THE BRIEF REASONS FOR THE JUDGMENT:
PROSECUTION CASE:
1. On 06.09.12 complainant Sunder Kumar Rai who was a driver by profession was going on foot to his house. At 10.30 pm when he reached near Service Road, B2, Lawrence Road, two boys came and started beating the complainant. Those boys instructed the complainant to raise his hands otherwise they would kill him. Complainant raised his hands. One of the boy took out wallet of the complainant containing cash and license etc. The mobile phone of the complainant, his wrist watch and some cash and other documents were also taken by those boys. When those boys were fleeing from the spot, complainant raised alarm. On hearing the alarm, some public persons apprehended one of the boy whose name was revealed as Prem Thapa. The police also came at the spot. From possession of accused Prem Thapa, stolen amount of Rs. 1000/ and LIC policy receipt belonging to complainant were recovered. The other boy succeeded in his escape. FIR was registered and investigation was initiated. Accused Prem Thapa disclosed the name of his associate as Arun Kumar. On 07.09.12 a raid was conducted at the house of Arun Kumar and he was apprehended. From his possession, stolen mobile phone of the complainant was recovered. He disclosed that the documents etc. which FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 2/12 3 were present in the stolen wallet of complainant were disposed off by him in a drain. The accused Arun as well as the recovered mobile phone were identified by the complainant.
2. After completion of investigation, charge sheet in respect of offences U/s 392/394/411/34 IPC was prepared and filed in the Court against accused persons and accordingly cognizance was taken by Ld. Predecessor.
3. Complete copies were supplied to accused in compliance of section 207 Cr.PC and arguments on charge were heard. Ld Predecessor framed the charge for the offences U/s 392/394/411/34 IPC against accused Arun Kumar. Charges U/s 392/394/34 IPC were framed against accused Prem Thapa. Both of them pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE:
4. In support of its case, the prosecution has examined nine witnesses namely PW1 HC Rajender Kumar, PW2 Sh. Inder Kumar, PW3 Sh. Sunder Kumar Rai, PW4 Ct. Mehar Singh, PW5 Ct. Yadvender Rana, PW6 SI Arvind Yadav, PW7 Sh. Vishal Gaurav, PW8 Ct. Shakti and PW9 SI Surender Singh. I shall be briefly touching upon the material portions of the depositions of the prosecution witnesses.
4.1. PW1 HC Rajender deposed that on 06.09.12 he was working as Duty Officer at PS. On receipt of rukka sent by SI Surender Singh, the present FIR was lodged which is Ex.PW1/A. 4.2. PW3/complainant supported the prosecution case while he narrated the FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 3/12 4 incident as discussed in para no. 1 of the judgment. He categorically deposed about being robbed by two boys and about apprehension of accused Prem Thapa at the spot. He categorically deposed about recovery of Rs. 1000/ and LIC documents from possession of accused Prem Thapa which was seized vide memo Ex.PW3/A. His complaint made to police is Ex.PWE3/B. The arrest memo of accused Prem Thapa is Ex.PW3/C. PW3 further deposed that on the next day he joined the investigation with the police and went to a shop situated at Lawrence Road where accused Arun was identified by him. The arrest memo of accused Arun is Ex.PW3/D. He deposed that his robbed mobile phone was recovered from Arun which was seized vide memo Ex.PW3/E. He identified both the accused persons in the Court. He also identified the mobile phone as Ex.P1. He identified the currency notes recovered from accused Prem Thapa as Ex.P2 and LIC receipt as Ex.P3.
4.3. PW2 Sh. Inder Kumar deposed that the complainant Sunder Kumar was his brother. On 01.11.12 police telephonically informed him regarding robbery with his brother and he went to PS Keshav Puram. He informed the police that he got issued a SIM card with mobile no. 8800846988 in his name and the said SIM card was given by him to his brother Sunder for use. He further deposed that his mobile phone was a Chinese phone without having any invoice/bill.
4.4. PW4 Ct. Mehar Singh deposed that he joined the investigation of this case with SI Surender on 07.09.12. Accused Prem Thapa was taken to Dossier Cell from where he was brought to Rohini Court. The complainant Sunder Kumar also FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 4/12 5 came to Rohini Court where police custody of Prem Thapa was obtained. He further deposed that on reaching B Block, Shop No. 4, Indl. Area, Keshav Puram the complainant identified a person whose name, after apprehension, was revealed as Arun. PW4 also deposed about recovery of a Chinese mobile phone from accused Arun. The disclosure statement of accused Arun was marked as Ex.PW4/A. 4.5. PW5 Ct. Yadvinder Rana deposed that on 06.09.12 he was working as a DD writer at PS. At about 10.53 pm, he received an information through operator regarding apprehension of a snatcher. The information was lodged vide DD No. 77B Ex.PW5/A. 4.6. PW6 SI Arvind Yadav from Finger Print Bureau, Kamla Market, deposed that on 10.09.12 he received a finger print search slip of accused Prem Thapa which was matched with the database. A report Ex.PW6/A was prepared. The finger prints were matched with the database in five convictions.
4.7. PW7 Sh. Vishal Gaurav Nodal Officer of Bharti Airtel Ltd brought original Customer Application Form of mobile no. 8800846988. This number was issued to Sh. Inder Kumar S/o Dev Narain on 09.08.10. The application form and the documents etc. deposited by the customer Sh. Inder Kumar are Ex.PW7/A. PW7 further deposed that he handed over copy of the Customer Application Form to the IO vide letter of IO Ex.PW7/B. 4.8. PW8 Ct. Shakti and PW9/IO SI Surender deposed about the FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 5/12 6 investigation part of the case. They deposed about arriving at the spot on 06.09.12, meeting the complainant, handing over of accused Prem Thapa, recovery of cash and LIC receipt from accused Prem Thapa and seizure of the recovered properties vide memo Ex.PW3/A. PW9 deposed that he recorded the statement of complainant and prepared a tehrir Ex.PW9/A. The arrest and personal search memos Ex.PW3/C and Ex.PW8/A were prepared. Site plan Ex.PW9/B was also proved.
4.9. PW9 further deposed about the investigation done on the next day including producing the accused Prem Thapa at Rohini Court and arrival of complainant at Rohini Court. He deposed about reaching shop no. B4, Lawrence Road at the instance of Prem Thapa where complainant identified the accused Arun. PW9 deposed about recovery of a stolen mobile phone from accused Arun. The personal search of accused Arun is Ex.PW3/A. PW9 also deposed that he got finger prints of both the accused persons taken at Dossier Cell, Ashok Vihar which are Ex.PW9/D and Ex.PW9/E.
5. After examining all its witnesses, prosecution evidence was closed. Thereafter the statements u/s 313 Cr.P.C of accused persons were recorded. Accused persons denied the evidence put to them. Both of them claimed their innocence and pleaded that they were falsely implicated. However, said accused persons opted not to lead any DE.
STATUTORY PROVISIONS:
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6. To prove the charge of robbery U/s 392 IPC against the accused persons, the prosecution must establish the following ingredients/facts.
(a) A theft was committed i.e the accused persons, intending to take dishonestly the money and other properties out of the possession of the complainant without his consent moved the money/other properties in order to such taking.
(b) In order to the committing of the theft or in committing the theft, the accused, for that end voluntarily caused or attempted to cause hurt, wrongful restraint or fear of such hurt or wrongful restraint, to the complainant.
6.1. To prove a charge U/s 394 IPC, prosecution must establish:
(a) A robbery as discussed in preceding paragraph was committed or attempted to be committed and
(b) In such commission or attempt, hurt was voluntarily caused. 6.2. To bring home guilt U/s 411 IPC, it must be established that:
(a) The mobile phone of complainant was infact stolen ( in other words, the mobile phone was a stolen property).
(b) This stolen mobile phone was recovered from the possession of accused Arun.
(c) Accused Arun dishonestly received or retained this property knowing or having reasons to believe the same to be stolen property. Arguments and appreciation of evidence:
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7. Ld. Legal aid counsel Sh. Yashvir Singh for accused Prem Thapa submitted that the prosecution has not been able to prove the charges. It was firstly argued that in his cross examination, PW3 stated that he signed his complaint Ex.PW3/B, seizure memos Ex.PW3/A and E and arrest memos Ex.PW3/C and D in PS. It was argued that the entire investigation was conducted not at the spot but at the PS and therefore, the investigation is vitiated.
8. I have duly considered this argument. It is a rule of prudence that investigation should be conducted at the spot so as to rule out a possible manipulation in the investigation. There is however no such absolute rule that if a portion of investigation is not done at the spot, the entire investigation is to be discarded. Each and every case has to be appreciated in its peculiar facts and circumstances. Preparation of memos etc. is a formal part of the investigation. Such documents being signed by a witness is even more formal. In the case like present one, the first priority of the police should be to apprehend the second culprit who escaped from the spot and not first preparing formal documents at the spot. Merely because PW3 signed the memos at PS, the investigation does not become vitiated or tainted.
9. Ld. LAC further argued that the seizure memo Ex.PW3/A is finding mention of FIR number etc. at its top. He argued that this seizure memo was prepared prior to registration of FIR and it was not possible to have mentioned the FIR number on the same.
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10. I have already discussed that several documents are to be prepared during the investigation. The tehrir was contemporaneously sent by the IO for registration of FIR and the same was in fact registered at 12.25 am. There is nothing wrong or illegal if the IO subsequently appended the FIR number on the seizure memo to bring specificity to the document. I am finding nothing wrong in the document Ex.PW3/A on the ground that it was bearing FIR number.
11. Ld. LAC further pointed out that there is a cutting/overwriting on the date mentioned in Ex.PW3/A.
12. I have carefully perused this document which is having an overwriting and seemingly, the date of '07' has been over written as '06'. I am finding no substance in this argument as no question has been put to the author of this document i.e PW9 regarding the overwriting. Secondly, in the incident pertains to the intervening night of 67/09/12. It is a very common mistake to mention a wrong date during this cusp period. In these circumstances, not much weightage can be attached to this overwriting mistake.
13. Ld. Counsel Sh. Sunil Tomar for accused Arun argued in addition that PW3 did not furnish any document to prove his ownership over the mobile phone allegedly are recovered from Arun. He pointed out that PW3 was not even the owner of the said mobile phone because prosecution witness no. 2 Sh. Inder Kumar stated that he was the owner of the mobile phone. It was argued that in absence of proof of ownership, no charge could be proved against accused Arun. FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 9/12 10
14. This court is to see if absence of proof of ownership can bring a case out of the purview of offence of theft as defined U/s 378 IPC. The language of Section 378 IPC does not provide that the person from whose possession the property is being taken should be the owner thereof. The emphasis has been laid down on the "possession" and not "ownership". In my considered opinion, taking out a property out of possession of a person who is not the owner thereof is a complete offence of theft (i) if the property was intentionally taken dishonestly, (ii) without that person's consent and (iii) moved in order of such taking.
15. Ld. Counsel for accused Arun next argued that no public witness was joined in the investigation at the time of the arrest or the alleged recovery of mobile phone from accused Arun.
16. There is no absolute proposition of law that public witnesses should become a witness in each and every stage of investigation. PW3 was victim of a crime and there is nothing in his cross examination to suggest that he was having any prior enmity with the accused persons to have falsely implicated them. There was no reason or motive for the complainant to indulge in a useless and tedious exercise of lodging an FIR without having been a victim of robbery. Further more, there was no motive for PW3 to falsely implicate the accused persons if the robbery was committed by someone else. The given circumstances indicate that PW3 was himself as independent a witness as any other public person could be. Therefore, I am finding no merit in the argument of absence of public witness in the present FIR No. 258/12 State Vs. Prem Thapa etc. Page No. 10/12 11 case.
17. I have considered each and every aspect of the case and I have dealt with each and every contention of the parties. The testimony of PW3 regarding the incident of robbery, identification of the accused persons and the consequent recovery of mobile phone and other properties could not be shaken during cross examination. Rather on every material aspect, the deposition of PW3 remained firm and consistent. The prosecution has further proved the investigation part. The recovery of mobile phone Ex.P1 from possession of accused Arun is also duly proved. Accused Arun never put forth a case that he bonafidely came in possession of this mobile phone. The circumstances clearly indicate that the accused Arun was having the knowledge/reasons to believe as contemplated U/s 411 IPC. The prosecution has been able to establish the ingredients of offence of theft committed by the accused persons, of the properties belonging to the complainant. The complainant categorically deposed that the accused persons put him under fear of being stabbed with a knife. This fear was extended for committing the theft. Therefore, the offence of theft committed by the accused persons became the offence of robbery. The charge U/s 392 IPC is duly established by the prosecution.
18. A charge U/s 394 IPC has also been framed against the accused persons, however, PW3 did not depose that any hurt was caused to him. Section 394 IPC require that hurt must be voluntarily caused. Therefore, the prosecution has failed to prove the charge U/s 394 IPC.
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19. The circumstances are clearly indicating that the accused persons had shared a common intention to commit the offence of robbery. By virtue of Section 34 IPC, one accused is liable for the offence committed by the other. Moreover, the complainant fastened individual role upon the accused persons in so much so that one of the accused took out the wallet and the other accused took out mobile phone and watch etc. Therefore, the accused persons are held liable U/s 392 IPC r/w Section 34 IPC.
20. Against accused Arun, the charge of retaining a stolen mobile phone is duly proved beyond shadow of doubt.
CONCLUSION
21. After going through the evidence proved on record and in the light of discussion made herein above, I hold the accused Prem Thapa and Arun guilty U/s 392/34 IPC. Further I hold the accused Arun guilty U/s 411 IPC. Both the accused persons are accordingly convicted.
ANNOUNCED IN THE OPEN (NEERAJ GAUR)
COURT TODAY ON 05.05.2014 (ACMM/NW/ROHINI/DELHI)
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